Julian Mingo v. State of Mississippi ( 2005 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-KA-01238-SCT
JULIAN MINGO
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/26/2005
TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHARLES E. MILLER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL:
BY: JOHN R. HENRY
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/07/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., DIAZ AND CARLSON, JJ.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. A Lowndes County jury convicted Julian Mingo of three counts of fondling a fifteen-
year-old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served
consecutively, followed by five years of post-release supervision. On appeal, Mingo
challenges various rulings by the trial judge, the sufficiency of the evidence supporting his
conviction, and the length of his sentence.1 Finding each of Mingo’s claims to be without
merit, we affirm the judgment of conviction and the sentence imposed.
FACTS
¶2. Julian Mingo was employed as the band and choral director at a private school in
Lowndes County, Mississippi. The victim, who was fourteen years old at the time the
relevant incidents began, was a student at the school with an interest in the fine arts. The
victim’s parents hired Mingo as a private voice coach in the summer of 2004, believing that
private instruction would help their son get admitted to a school for the performing arts.
¶3. The lessons were conducted in the school’s band hall, often in a small private practice
room. At the victim’s first lesson in early June, Mingo informed the victim that he might use
some “weird techniques” to train the victim. At the second lesson on June 16, 2004, Mingo
led the victim to a small private practice room and reminded him of his “weird techniques.”
Mingo then turned off the lights, stood behind the victim, and began fondling him. He told
the victim not to tell anyone. The victim continued to take lessons from Mingo over the
summer and into the fall. Over the course of the lessons, Mingo repeatedly fondled the
victim.
¶4. The victim finally told a friend about Mingo’s actions on October 19, 2004. The
victim’s friend told another classmate of the victim on October 20. This classmate asked the
victim about the allegations and took him to the school counselor to have the victim explain
what had happened. The counselor called the school headmaster who, in turn, called the
chief of police. The chief of police interviewed the victim, gave him a small tape recorder
1
Mingo raises fourteen issues on appeal, which we have consolidated into twelve.
2
to put in his pocket, and asked him to confront Mingo in his office. The victim went to
Mingo’s office at the beginning of an afternoon class and asked him why he had fondled the
victim. Mingo apologized repeatedly and said that he would stop. After the victim left
Mingo’s office and went back to the police chief, Mingo left his office and gave a speech to
his students about the importance of forgiveness.
¶5. Later that afternoon, the parent of another student, who had heard about the
allegations against Mingo, went to the school and confronted him. Mingo admitted touching
the student, but said there had been a misunderstanding. At the end of the school day, the
school’s headmaster asked Mingo to leave the school until the matter was resolved.
¶6. The victim gave a more extensive statement to the police on October 20th. Based on
his statement, the Columbus police sought to interview Mingo. They asked the headmaster
to contact Mingo and ask him to come to the police station for questioning. Mingo went to
the police station voluntarily to give a statement in the afternoon on October 20th. Although
he was not placed in custody at that time, he was advised of his Miranda rights and signed
a waiver indicating that he understood those rights. In his statement to police, Mingo
admitted touching the victim. Mingo consented to having his home searched, and, in the
course of their search, the police found an eight millimeter tape of a young male performing
a sexually explicit act.
¶7. After being convicted of three counts of fondling and being sentenced to three ten-
year terms, to run consecutively, Mingo appeals.
DISCUSSION
(1) Legality of Arrest
3
¶8. Mingo claims that his arrest was without probable cause since it was based solely on
the testimony of the victim. Determinations of reasonable suspicion and probable cause are
reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed.
2d 911 (1996); Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999).
However, we will conduct a de novo review of the trial judge’s determination “based on
historical facts reviewed under the substantial evidence and clearly erroneous standards.”
Dies v. State, 926 So. 2d 910, 917 (Miss. 2006) (citing Floyd, 749 So. 2d at 113).
¶9. Mingo significantly misstates the record in implying that he was arrested after the
victim gave a statement to the police. The record reflects that after the police took the
victim’s statement, Mingo was asked to come to the police station to answer questions
concerning the accusations of the victim. He voluntarily agreed to give a statement and was
not arrested until after he had given the statement. The statements of the victim and Mingo’s
own corroboration were more than sufficient to establish probable cause.
¶10. Even if Mingo had been arrested in response to the victim’s statement, Mingo cites
no authority for the principle that a witness’ testimony is insufficient to establish probable
cause. The State persuasively argues that since the uncorroborated testimony of a victim can
provide the basis for a finding of guilt beyond a reasonable doubt, see Collier v. State, 711
So. 2d 458, 462 (Miss. 1998), it must by definition suffice for the lesser finding of probable
cause.
¶11. This claim is without merit.
(2) Admissibility of Statement
4
¶12. Mingo argues that his statement to police before his arrest is inadmissible because he
was not properly given his Miranda warnings. The threshold question in a Miranda rights
analysis is whether the defendant was in custody and being interrogated when the statement
in question was made. Drake v. State, 800 So. 2d 508, 513 (Miss. 2001). A person is “in
custody” if a reasonable person would feel that they were going to jail and not just being
temporarily detained. Godbold v. State, 731 So. 2d 1184, 1187 (Miss. 1999). Whether a
reasonable person would feel that she was “in custody” depends on the totality of the
circumstances, and may include factors such as: (a) the place of interrogation; (b) the time
of interrogation; (c) the people present; (d) the amount of force or physical restraint used by
the officers; (e) the length and form of the questions; (f) whether the defendant comes to the
authorities voluntarily; and (g) what the defendant is told about the situation. Hunt v. State,
687 So. 2d 1154, 1160 (Miss. 1996). If a person is determined not to be in custody and is not
being interrogated, the Miranda protections do not attach. Voluntary statements made by
a defendant do not trigger the requirements of Miranda. Drake, 800 So. 2d at 513
¶13. As noted above, Mingo voluntarily went to the police station, was told about the
victim’s accusations, and agreed to give a statement to police. He was not placed under
arrest before questioning, and the officers emphasized that he was free to end his questioning
at any time. Given these circumstances, Mingo was not “in custody” and, therefore, was not
entitled to the Miranda protections. Nevertheless, out of caution the officers did read Mingo
his Miranda warnings, and Mingo signed a waiver indicating that he fully understood those
rights. During a hearing on pretrial motions, Mingo conceded that he had been given his
Miranda warnings and had fully understood his rights. This claim is without merit.
5
(3) Rulings on Issuance of Two Subpoenas
¶14. Mingo claims that the trial court erred in denying him access to his personal notes and
documents contained in his desk at the academy and to the records of Cole Refrigeration, a
company that worked at the academy during the summer in 2004. We review a trial court’s
rulings on matters of evidence, relevancy and discovery violations for an abuse of discretion.
Flora v. State, 925 So. 2d 797, 819 (Miss. 2006) (citing Montgomery v. State, 891 So. 2d
179, 181 (Miss. 2004)).
¶15. Regardless of Mingo’s claims to the contrary, the record indicates that the trial judge
was willing to issue a limited subpoena duces tecum for any personal writings of Mingo held
by the school, but denied Mingo access to the victim’s school record. The court issued the
limited subpoena, but it does not appear that the school withheld any of Mingo’s personal
writings. We do not review allegations of error that are unsupported by the record. See, e.g.,
Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 457 (Miss. 2005) (“[T]his Court declines
to review such bare allegations[,] . . . which are not supported by the record on appellate
review.”); Vinson v. Johnson, 493 So. 2d 947, 950 (Miss. 1986) (“this Court will not review
any allegation of error which is unsupported by the record.”). There is no indication that the
trial court abused its discretion in its ruling.
¶16. Mingo claims that Cole Refrigeration’s records would show that he was not alone
with the victim at the band hall on certain dates referenced in the indictment. The trial judge
contacted the president of Cole Refrigeration, who informed him that the company did not
work in the band hall. The trial judge therefore denied the subpoena as irrelevant to the case
and informed defense counsel that, if he wanted to challenge the ruling, he could subpoena
6
the president of the company to testify. There is nothing in the record indicating that Mingo
chose to subpoena Cole’s president. The trial judge did not abuse his discretion in denying
the subpoena. See Johnson v. Fargo, 604 So. 2d 306, 309 (Miss. 1992) (“A trial judge has
the discretion to exclude irrelevant evidence.”).
¶17. These claims are without merit.
(4) Batson Rule Violation
¶18. During voir dire, Mingo challenged four of the State’s peremptory strikes against
African-American jurors, claiming that they violated the Batson v. Kentucky rule requiring
the State to provide race-neutral reasons for exercising peremptory strikes. 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Our standard of review for such claims is well settled:
[The] standard of review for Batson claims . . . accords "great
deference" to a trial judge's factual findings, reversing only
where the finding of the lower court was clearly erroneous or
against the overwhelming weight of the evidence. “Great
deference” has been defined in the Batson context as insulating
from appellate reversal any trial findings which are not “clearly
erroneous.” This deference specifically includes a trial judge's
determination of any racially discriminatory motive underlying
any articulated reasons given.
Baldwin v. State, 784 So. 2d 148, 155 (Miss. 2001) (citations omitted).
¶19. Mingo objects to the striking of four African-American veniremen. The first was
struck because he lived in a high-crime area; the second, because she had written a number
of bad checks and had been referred to the district attorney’s bad check unit; the third,
because she failed to indicate that she had a son on probation when asked by the State; and
the fourth, because she had a written bad checks and had been referred to the district
7
attorney’s bad check unit, and because she had a friend or close relative who was being
prosecuted by the district attorney.
¶20. Each of these reasons has been recognized by this Court as race-neutral. See, e.g.,
Snow v. State, 800 So. 2d 472, 482 (Miss. 2001) (striking a juror because of prior history of
writing bad checks is race-neutral reason); Baldwin v. State, 784 So. 2d 148, 155 (Miss.
2001) (living in a high crime neighborhood constitutes a valid race-neutral reason); Magee
v. State, 720 So. 2d 186, 190 (Miss. 1998) (striking juror because a family member had been
convicted or charged with a crime is a valid race-neutral reason); Lockett v. State, 517 So. 2d
1346 (Miss. 1987) (articulating a non-exhaustive list of race-neutral justifications). Nothing
in the record indicates that the State’s use of peremptory strikes against veniremen was
pretextual or discriminatory. Moreover, three African-American veniremen were seated on
the jury.
¶21. This claim is without merit.
(5) Motion to Suppress the Video of the Victim’s Statement to Police
¶22. Mingo claims that the admission of the video of victim’s statement to the police
violated the confrontation clause of Sixth Amendment. After the victim testified, the State
called the interviewing officer to the stand. During his testimony, the State moved to admit
the video of the victim’s statement. The trial court denied the State’s motion, finding that
video did not meet any of the exceptions to the hearsay rule under M.R.E. 802. During cross-
examination, defense counsel implied that the tape had been fabricated. While conducting
redirect examination of the interviewing officer, the State again moved to admit the tape as
8
a prior consistent statement under M.R.E. 801(d)(1)(B) in rebuttal to defense counsel’s
inferences. The trial court granted this motion.
¶23. Mingo did not object to the introduction of the video as a violation of the
confrontation clause at the trial level. The constitutional right of confrontation, like other
constitutional rights, is forfeited if it is not asserted at the trial level. Rogers v. State, 928
So. 2d 831, 838 (Miss. 2006); see also Stockstill v. State, 854 So. 2d 1017, 1023 (Miss.
2003); Ellis v. Ellis, 651 So. 2d 1068, 1073 (Miss. 1995). Because Mingo did not claim a
constitutional violation in the trial court, he is procedurally barred from doing so here.
¶24. Even if Mingo had properly preserved the issue for appeal, his claim is without merit.
The victim testified at the trial, and Mingo had the opportunity to extensively cross-examine
him; therefore his right to confront witnesses against him was not violated. Mingo’s reliance
on Offor v. Scott, 72 F.3d 30 (5th Cir. 1995), is misplaced. There, the videotaped statement
was the first piece of evidence offered by the prosecution and was offered as direct evidence
of Offor’s guilt. Id. at 31, 33. The victim did not testify and was not cross-examined. The
case before this Court is clearly distinguishable. The video in this case was not offered as
direct evidence, and the witness testified and was cross-examined. The admission of the
videotape did not violate the confrontation clause.
¶25. This claim is without merit.
(6) Exclusion of Proposed Expert Witness
¶26. The day before the trial began, Mingo provided the prosecution with the name of a
proposed expert witness on voice training and a lay witness who was to testify to Mingo’s
whereabouts on one of the dates referenced in the indictment. The State moved to have the
9
expert excluded. The trial judge granted the motion to exclude the expert witness, but
admitted the testimony of the lay witness.
¶27. The standard of review regarding admission or exclusion of evidence is abuse of
discretion. Parks, 884 So. 2d at 742. We will not reverse the trial court’s evidentiary ruling
unless the error adversely affects a substantial right of a party. Id. It is appropriate to
exclude a witness’s testimony where the failure to present the witness in a timely manner is
willful and motivated by a desire to obtain a tactical advantage that would minimize the
effectiveness of cross-examination and the ability to adduce rebuttal evidence. Beckwith v.
State, 707 So. 2d 547, 575 (Miss. 1997).
¶28. The trial judge carefully considered Mingo’s proffers and, relying on Beckwith,
found that the belated presentation of Mingo’s expert was motivated by a desire to obtain a
tactical advantage. On the same motion, he accepted the lay witness with the understanding
that the State would have an opportunity to interview her before the trial commenced. The
trial judge did not abuse his discretion.
¶29. This claim is without merit.
(7) Admission of an Eight Millimeter Videotape
¶30. Mingo makes two claims concerning the admission of an eight millimeter videotape
seized from his home that depicted a young male engaged in a sexually explicit act. First,
he claims that the State committed a discovery violation by failing to provide him with a
copy of the tape. Second, Mingo claims that the trial court erred in admitting the tape
because it was evidence of prior bad acts in violation of M.R.E. 404(b). The standard of
10
review for the rulings of a trial court of evidence and discovery violations is abuse of
discretion. Flora, 925 So. 2d at 819.
¶31. Mingo is disingenuous in claiming that the State erred by denying him a copy of the
8 millimeter videotape. In the pre-trial hearings on the admissibility of the videotape, the
State specifically inquired whether Mingo possessed a copy of the videotape from a related
and contemporaneous charge, and Mingo confirmed that he did. When the videotape was
admitted during the State’s rebuttal examination, Mingo reversed himself and stated that he
did not possess a copy of it. The State maintained that the videotape was in the possession
of the police, and that they would provide a copy if Mingo requested it. The trial judge
agreed that videotape was available to Mingo. Although there is some dispute whether
Mingo did in fact request a copy of the videotape, the record demonstrates that the trial judge
was within his discretion in finding that Mingo was not impermissibly denied a copy.
¶32. Mingo is similarly mistaken in claiming that the videotape was admitted as evidence
of prior bad acts under M.R.E. 404(b). When the State first moved to introduce the videotape
as a part of its case-in-chief, the trial judge found it inadmissible under M.R.E. 404(b) and
emphasized that the tape could not be used to prove that Mingo had homosexual tendencies
because Mingo had not denied that he did. Cf. Florence v. State, 755 So. 2d 1065, 1071
(Miss. 2000) (finding that sexually explicit homosexual magazines and videotapes were
admissible in a sexual battery case when the defendant had “opened the door” to such
evidence by denying that he was a homosexual). However, the court recognized that the
videotape might be admissible under an exception to M.R.E. 404(b) on the State’s rebuttal.
The trial judge ultimately admitted the videotape as an exception to M.R.E. 404(b) to show
11
intent and absence of mistake because Mingo claimed on direct examination that, if he had
touched the victim inappropriately, he had done so accidentally. Kolb v. State, 542 So. 2d
265, 269 (Miss. 1989) (evidence of particular sexual urges was admissible to rebut a claim
of accident).
¶33. The record shows that the trial judge was acutely aware of the potentially prejudicial
character of the videotape and was careful to admit the tape only to rebut the claim of
accident. He allowed no questioning about the age of the young male in the video, did not
allow the State to mention the related charges against Mingo for possession of the videotape,
and gave a limiting instruction to the jury on the use of the evidence. On balance, the trial
judge acted prudently and within his discretion.
¶34. Because Mingo was not impermissibly denied access to the videotape and because the
videotape was not admitted as evidence of prior bad acts, this claim is without merit.
(8) Admission of Testimony of Rebuttal Witnesses
¶35. Mingo contends that the admission of the rebuttal testimony of two witnesses was
erroneous because their names had not been disclosed during discovery.
¶36. Tabitha Pate, an operations officer at the National Bank of Commerce, testified that
her bank cashed a check dated June 16, 2004, from the victim’s father to Mingo on June 18,
2004. Her testimony was introduced to rebut Mingo’s claim that he had not given the victim
a lesson on June 16, one of the dates in the indictment.
¶37. Sara Richert, a licensed practicing nurse, testified to the location of the diaphragm
on the human body. Her testimony was introduced to rebut Mingo’s claim about the location
of the diaphragm.
12
¶38. The standard of review regarding admission or exclusion of evidence is abuse of
discretion. Parks v. State, 884 So. 2d 738, 742 (Miss. 2004) (citing Ladnier v. State, 878
So. 2d 926 (Miss. 2004)). In addition, the State has no duty to provide the defense with the
names of possible rebuttal witnesses, unless the State has requested notice of an alibi defense.
Smith v. State, 724 So. 2d 280, 320 (Miss. 1998); Deal v. State, 589 So. 2d 1257, 1259
(Miss. 1991). The testimony of the rebuttal witnesses was introduced to rebut specific facts
alleged by Mingo during direct and cross-examination. The trial judge did not abuse his
discretion in admitting the testimony.
(9) Denial of Change of Venue
¶39. Mingo claims that the trial court improperly denied his motion for a change of venue.
Mingo did not move for a change of venue during voir dire; instead, he notified the court of
his motion during his own case-in-chief. He argued that given the alleged bias of the trial
judge, the media coverage of his trial, a defense witness’ concerns for her safety, and an
allegedly uncooperative police department, the trial court should transfer the trial. The court
found that the motion was untimely and denied it.
¶40. The decision to grant the venue change is in the sound discretion of the trial judge.
Gray v. State, 799 So. 2d 53, 62 (Miss. 2001). We will not disturb the ruling of the lower
court where the trial judge did not abuse his discretion in denying the change of venue
motion. Id. It is also well accepted that an application for a change of venue must strictly
conform to the statutory requirements of Miss. Code Ann. § 99-15-35 (Rev. 2000) which
requires that the motion be in writing, and supported by the affidavits of two or more credible
persons. Baldwin v. State, 732 So. 2d 236, 241 (Miss. 1999). Change of venue motions have
13
been properly denied where they were not supported by affidavits of two or more credible
persons. Gilliard v. State, 428 So. 2d 576, 579 (Miss. 1983), overruled on other grounds,
Willie v. State, 585 So. 2d 660 (Miss. 1991).
¶41. Mingo’s motion is both procedurally barred and substantively without merit. Mingo’s
motion was not in writing, was not supported by the affidavits of two or more credible
persons, and was therefore procedurally barred. In addition, the trial court found that the
allegations of judicial bias were unfounded, that the sheriff’s department had not been
uncooperative, that third-hand evidence of threats against one of Mingo’s witnesses was
inadmissible hearsay, and that the jury had affirmed during voir dire testimony that media
coverage of Mingo’s trial would not affect their impartiality. On review of the record, each
of the trial court’s determinations was supported by ample credible evidence.
¶42. This claim is without merit.
(10) Motion for Recusal
¶43. Late in the trial, during the defense’s case-in-chief, Mingo made a motion for the trial
judge to recuse himself, which was denied. Mingo argues that the denial of the motion was
error because: (a) the trial judge ruled against Mingo on a number of motions, including
denying the motions to suppress and to exclude an untimely witness, and refusing to issue
a subpoena for certain documents, all of which have been discussed above; (b) the judge
strongly censured Mingo’s attorney for attempting to suggest to the jury that the victim was
racist without submitting any evidence to the court on that issue; and (c) the trial judge held
Mingo’s attorney in direct criminal contempt when he refused to continue with the trial.
14
¶44. When we review a denial of recusal, we “will look to the whole trial and pass upon
questions on appeal in the light of the completed trial . . . and if we are unable to find that
rulings have been prejudicial to the defendant, we will not reverse.” Brown v. State, 829
So. 2d 93, 99 (Miss. 2002).
(a) Denial of Motions
¶45. The trial judge made a number of rulings against Mingo before and during trial. For
the purposes of recusal, “judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. . . . Unless the judge abuses this discretion so as to be prejudicial to the
accused, the Court will not reverse this ruling.” Farmer v. State, 770 So. 2d 953, 958 (Miss.
2000).
¶46. Mingo cites no authority to show that adverse rulings by a trial judge indicate bias.
The record contains no indication that the trial judge was unreceptive or dismissive of
Mingo’s arguments. We will not find adverse rulings to demonstrate bias simply because
they are adverse. Finally, we have addressed the rulings on these motions on the merits and
have found that the trial court was within its discretion to deny Mingo’s motions.
(b) Censure by the Trial Judge
¶47. During his cross-examination of the victim, defense counsel asked the victim whether
he had gotten angry at a black student at the academy. The State objected, and the trial judge
excused the jury from the courtroom to hear the parties’ arguments. Defense counsel
conceded that he believed the victim, who is white, had animosity towards Mingo, who is
black, because of his race. The trial judge found that Mingo had not subpoenaed the child
in question, had not suggested that race was a factor during pre-trial discovery, and had not
15
mentioned the issue until he did so in front of the jury. The trial judge further found that the
actions of defense counsel violated rules of reciprocal discovery and threatened to report
defense counsel to the Mississippi Bar if he attempted to bring up the issue without
submitting evidence or adhering to the rules of discovery.
¶48. It is prejudicial error for questions on cross-examination to contain insinuations and
intimations of conduct for which there is no basis in fact. Flowers v. State, 842 So. 2d 531,
553 (Miss. 2003) (citing Walker v. State, 740 So. 2d 873, 884 (Miss. 1999)). Such
questioning without evidentiary basis is inflammatory and extremely prejudicial. Walker,
740 So. 2d at 884. No party should be permitted as a deliberate trial tactic to decide in
advance of trial to withhold a part of his case in chief, but instead attempt to suggest such
evidence in cross-examination of the witnesses for the opposing side. Hosford v. State, 525
So. 2d 789, 791 (Miss. 1988).
¶49. Mingo attempted to interject the issue of race into his case without preparing an
evidentiary foundation for doing so. The trial court was correct in holding Mingo to the rules
of discovery. See Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 864 (Miss. 2004)
(courts have the authority to sanction violations of the rules of discovery under both their
inherent authority and Miss R. Civ. P. 37(b)). Mingo cites no authority in support of his
claim that the trial judge’s censure constituted bias. The claim that the trial judge’s censure
constituted impermissible bias is without merit.
(c) Finding of Direct Criminal Contempt
¶50. Our approach to contempt matters is well settled:
16
Generally speaking, contempt matters are committed to
the substantial discretion of the trial court which, by institutional
circumstance and both temporal and visual proximity, is
infinitely more competent to decide the matter than the Supreme
Court. When dealing with contempt matters, we must first
determine whether the alleged contempt is either civil or
criminal in nature. If the contempt is civil, the proper standard
utilized for review is the manifest error rule. If the contempt is
criminal, then we will proceed ab initio and will determine on
the record whether the person in contempt is guilty of contempt
beyond a reasonable doubt. If the primary purpose of the
contempt order is to enforce the rights of private party litigants
or enforce compliance with a court order, then the contempt is
civil. . . . Criminal contempt penalties, on the other hand, are
designed to punish the contemnor for disobedience of a court
order; punishment is for past offenses and does not terminate
upon compliance with the court order.
In re Williamson, 838 So. 2d 226, 237 (Miss. 2002) (citations omitted). Contempt may be
direct, occurring in the presence of the court, or indirect, occurring outside the presence of
the court. Id. at 237. Direct criminal contempt includes words or actions before the court
that tend to embarrass the court or prevent the orderly administration of justice. Jordan v.
State, 216 Miss. 542, 62 So. 2d 886, 888 (1953).
¶51. A summary of the events preceding the trial judge’s finding of criminal contempt is
warranted.2 On the morning of May 24, 2004, the court convened out of the presence of the
jury to consider proposed jury instructions. Mingo did not appear for trial as required, and
Mingo’s attorney admitted that he told Mingo not to come to court. The State moved for a
judgment nisi against Mingo, which the trial court granted. Mingo was brought to court later
that morning.
2
Testimony relative to the contempt ruling covers approximately 63 pages of the
record immediately preceding the trial judge’s finding of direct criminal contempt.
17
¶52. After Mingo’s arrival, his attorney asked the judge to consider alleged threats that had
been made against Mingo and his witnesses. Mingo’s attorney alleged that unknown third
persons had told a witness that they had heard the victim and a friend talk about hurting
Mingo, and the same witness had been told that another unknown third person had threatened
to burn down her house. Based on these allegations, Mingo’s attorney moved for a mistrial,
for a change of venue, and for the trial judge to recuse himself because of bias. The trial
judge denied each of the motions, noting that the statements were inadmissible hearsay, and
that he would ask the police to investigate any allegations of witness intimidation. He further
noted that he had gone to great lengths to accommodate Mingo’s attorney, including
directing the county sheriff to serve subpoenas for the defense, and that, consequently, the
charge of his being biased against Mingo was without merit. Mingo’s attorney argued that
he was not prepared to consider proposed jury instructions, and the trial judge called a noon
recess to allow Mingo’s attorney to review them.
¶53. When the court reconvened that afternoon, Mingo’s attorney announced that he was
unwilling to continue representing his client. The State noted that one of Mingo’s witnesses
refused to speak to the State’s investigators, and Mingo’s attorney admitted that he had told
the witness not to speak to the investigator. Mingo’s attorney again alleged that threats had
been made against his witnesses and his client, and that these threats warranted a mistrial.
He again stated his intent to withdraw from the trial. The trial judge found the attorney’s
motion to withdraw was not well taken. Mingo’s attorney again refused to continue his
representation, and the trial judge called a recess and contacted the Mississippi Bar. After
the court reconvened, Mingo’s attorney again alleged that his client and witnesses had been
18
threatened. The trial judge offered to call the Highway Patrol to investigate the allegations.
Mingo’s attorney again requested a mistrial or a continuance and a change of venue in the
alternative. After the trial court refused the motion, the following exchange occurred:
BY THE COURT: Now, I propose to bring the jury out. Do
you have the next witness that you wish to
call?
BY MR. MILLER: No, your Honor, I do not.
Q. So you’re going to rest?
A. No, your Honor, I’m not.
Q. All right. You are telling me then outside of the presence
of the jury that you will not proceed on this case?
A. I cannot help Mr. Mingo at this point, your Honor, and it
is my professional responsibility to announce that to the
court.
Q. Then it is my professional responsibility as the trial judge
and the Circuit Judge in this district and to make sure that
we have the orderly control of cases to have the sheriff’s
deputy stand, and I’m going to find that you are in direct
criminal contempt and you will be taken to jail. I will
recess this matter until nine o’clock tomorrow morning.
If you wish to proceed at that time, I will bring you back
in.
¶54. Defense counsel’s refusal to continue with trial clearly constituted an action tending
to prevent the orderly administration of justice. The trial judge’s decision to hold counsel
in direct criminal contempt, while serious, was within his discretion. Reviewing the record,
we find no bias or impropriety by the trial judge in his rulings.
¶55. This claim is without merit.
(11) Sufficiency of the Evidence
19
¶56. Mingo claims that the trial court erred in denying a directed verdict because the
evidence was insufficient to support a conviction. In considering whether the evidence is
sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the
verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that
accused committed the act charged and that he did so under such circumstances that every
element of the offense existed. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). This
inquiry does not require a court to ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Id. If there
is sufficient evidence to support a guilty verdict, the motion for a directed verdict must be
overruled. May v. State, 460 So. 2d 778, 781 (Miss. 1984).
¶57. Mingo falls far short of his burden of showing that the character and weight of the
evidence was such that no reasonable juror could have found Mingo guilty. The State
proffered direct evidence in the form of the victim’s testimony and Mingo’s statement to
police. Despite Mingo’s assertions to the contrary, such evidence is not circumstantial.
Garrett v. State, 921 So. 2d 288, 291-92 (Miss. 2006). Mingo also alleges inconsistencies
between the victim’s testimony and that of other witnesses. However, determinations of
witness credibility are matters for a jury to decide. Hughes v. State, 724 So. 2d 893, 896
(Miss. 1998). Though no direct evidence was presented that Mingo touched the victim
specifically to satisfy his lustful desires, this Court has held that such recognition may arise
20
from the circumstances of the encounter itself. Ladnier v. State, 878 So. 2d 926, 930 (Miss.
2004) (citing Bradford v. State, 736 So. 2d 464, 466 (Miss. Ct. App. 1999)).
¶58. Taking all the evidence supporting the verdict as true, together with all reasonable
inferences, it is clear that a reasonable juror could have found Mingo guilty.
¶59. This claim is without merit.
(12) Cruel and Unusual Punishment
¶59. Mingo argues that his three ten-year sentences, to be served consecutively, are
disproportionate to the crime and violate the Eighth Amendment to the United States
Constitution. Mingo was convicted under Miss. Code Ann. § 97-5-23 (2006), and the judge
ordered that the sentences run consecutively under Miss. Code Ann. § 99-19-21 (2006).
¶60. As a general rule, “when sentences are within the limits of the statute, the imposition
of such sentences is within the sound discretion of the trial court and this Court will not
reverse them. . . . Likewise, we have held that providing punishment for crime is a function
of the legislature, and, unless the punishment specified by statute constitutes cruel and
unusual treatment, it will not be disturbed by the judiciary.” Presley v. State, 474 So. 2d 612,
620 (Miss. 1985). We review sentences in light of the factors articulated by the United States
Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),
only when a threshold comparison of the crime committed to the sentence imposed leads to
an inference of “gross disproportionality.” Nichols v. State, 826 So. 2d 1288, 1290 (Miss.
2002). Generally, sentences that do not exceed the maximum term allowed by statute will
not be considered grossly disproportionate and will not be disturbed on appeal. Fleming v.
State, 604 So. 2d 280, 302-03 (Miss. 1992). Finally, this State recognizes that it is within
21
the trial court’s discretion whether multiple sentences will run concurrently or consecutively
Miss. Code Ann. § 99-19-21(1).3
¶61. The sentences imposed by the trial judge in the present case are within the limits set
by statute, and the decision to have the sentences run consecutively was within the sound
discretion of the judge. Because we find no abuse of discretion in the trial court’s decision,
we will not disturb his ruling on appeal.
¶62. This claim is without merit.
CONCLUSION
¶63. For the reasons set forth above, we affirm the circuit court’s judgment.
¶64. COUNT I: CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL
PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE
IS TO RUN CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS
II & III FOR A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST
RELEASE SUPERVISION. COUNT II: CONVICTION OF FONDLING OF A
CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SAID SENTENCE IS TO RUN CONSECUTIVELY WITH THE
SENTENCES IMPOSED IN COUNTS I & III FOR A TOTAL OF THIRTY (30)
YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED
BY FIVE (5) YEARS OF POST RELEASE SUPERVISION. COUNT III:
CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL PURPOSES AND
SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE IS TO RUN
CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS I & II FOR
A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF
3
Miss. Code Ann. § 99-19-21(1): “When a person is sentenced to imprisonment on
two (2) or more convictions, the imprisonment on the second, or each subsequent conviction
shall, in the discretion of the court, commence either at the termination of the imprisonment
for the preceding conviction or run concurrently with the preceding conviction.”
22
CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST RELEASE
SUPERVISION.
SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART
W ITH O UT SEPA RA TE W R ITT EN O PIN IO N . E A SLEY , J., N OT
PARTICIPATING.
23